Surrogacy in India
A parental order under section 54 of the Human Fertilisation and Embryology Act 2008 is compulsory for British Commissioning parents who have had a baby through Surrogacy abroad
The issue came up in a UK court last week. It was brought by a couple who wanted a surrogate child, presumably because they were unable to have one of their own. We know little about them except that they began legal proceedings in Birmingham.
In 2011, the Birmingham couple made a surrogacy agreement with a married couple in India. The Indian surrogate mother conceived using eggs donated by a third party and sperm from the Birmingham father.
A child was born in December 2011, the surrogate parents confirmed that they wanted to give up their parental rights and responsibilities, and the Birmingham couple brought the child to the UK on a British passport last year. He is well cared for and much loved.
So far, so good. But what the Birmingham parents did not know is that they needed a parental order from the English courts. That would ensure that the child was treated as their own. More importantly, it would extinguish the legal rights and responsibilities of the Indian couple. Without such an order, the Indian mother and her husband would continue to be treated as the child’s parents. They had no wish to remain involved with the child but could not give up those responsibilities without a court order.
A parental order under section 54 of the Human Fertilisation and Embryology Act 2008 was the obvious solution.
But there was a problem. Section 54(3) says that “the applicants must apply for the order during the period of six months beginning with the day on which the child is born”. It does not say what should happen if they do not. The Birmingham couple were at least a year late
Giving judgment in the surrogacy case last week, Sir James Munby said the courts had to decide which of these categories a case fell into. Did parliament intend non-compliance with the six-month deadline to be fatal? Or did it intend a “sensible” result?
Munby, the president of the family division, pointed out that a parental order “has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences”. A court had to treat the welfare of the child as paramount throughout his life. Parliament could not have intended a delay of a few months – for which the child had no responsibility – as critical. So he made the parental order that the Birmingham parents had requested.
Munby was able to reach this conclusion using principles of statutory interpretation. But he said he could also have reached the same result by “reading down” the statute under the Human Rights Act. However, he stressed that every case was fact-specific.
